Court Rules National Security Letters Unconstitutional

Under the PATRIOT Act, NSLs allow the FBI to spy on Americans' telephone, Internet, and other records without any court approval and regardless of whether the target is suspected of a crime. With a single piece of paper, the FBI could force your ISP to turn over detailed information about your Internet communications, including the Web sites you've visited and the email addresses you've written to. Worse still, an NSL recipient is barred from notifying anyone else about the demand.

Today, Judge Marrero ruled that this "gag order" is unconstitutional, and, in so doing, struck down the entire NSL statute. The gag not only tramples on the recipient's First Amendment rights but also prevents courts from fulfilling their Constitutional duty to check the other branches of government and scrutinize the restriction.

From the moment the PATRIOT Act was passed, we said NSLs were ripe for abuse, and, earlier this year, a Justice Department report confirmed some of our worst fears. It demonstrated that the FBI has blatantly misused this power and lied to Congress by underreporting NSLs by many thousands. A subsequent internal audit confirmed that the problem was even more extensive. These abuses were aided by the gag order, which made it practically very difficult for recipients to challenge the demands in court.

Fortunately, the ACLU was able to bring this case on behalf of an anonymous ISP. In September 2004, Judge Marrero struck down the PATRIOT Act's NSL provision, but the case was remanded for further review after Congress made some "reforms" that still left the government with essentially unchecked power to keep NSL recipients silent. EFF filed an amicus brief supporting the ACLU in the first go round at the district court and on appeal before the case was sent back down.

The decision is stayed pending appeal, but that doesn't mean this abuse of power should be allowed to continue in the meantime. We hope this ruling emboldens NSL recipients to reject these unconstitutional demands.

Meanwhile, EFF is continuing to fight hard to expose the truth about the NSL abuse through our Freedom of Information Act litigation. In the wake of the inspector general's report, EFF filed a lawsuit seeking fundamental information about the FBI's power grab. On June 16, 2007, a federal judge ordered the FBI to process 2,500 pages a month responsive to EFF's request. You can find the documents here.